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The People's Senate at 100

Americans love anniversaries. We commemorate the good ones—the Declaration of Independence and our triumphs in the 20th century’s two world wars, for example—and the bad ones, such as Pearl Harbor, JFK’s assassination and Sept. 11.

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Yet there’s one anniversary that has recently been roundly ignored: the centennial of popular elections for the U.S. Senate. One of the great innovations of the Progressive movement, the 17th Amendment took the election of U.S. senators away from state legislatures in 1913, where it had resided since the Constitution became effective in 1789, and put power in the hands of the people—or rather, at the time, a slice of the people (mainly, white men age 21 and over).

The amendment, after ratification on April 8, 1913, went into countrywide effect with the midterm election of 1914, though the first Senate contest to take place under the new rules was a special election in Maryland in November 1913. (For you trivia buffs out there, the winner was Democrat Blair Lee.) Prior to the 17th Amendment, some states, such as Oregon, had actually begun to use some form of popular election—for instance, some mandated that their legislatures ratify the Senate choice made by voters at the polls—but only after 1914 did all states employ popular elections for senators. Of course, it took three election cycles—all the way to 1918—to make popular election universal, as only one-third of the Senate is elected in any given year.

The Progressives saw this reform as critical to bypassing the corruption apparent in some state legislatures, where organized special interest groups essentially bought Senate seats for politicians they could control. Thank goodness all that money-driven venality is in our distant past. Americans in the 21st century would never put up with it, right?

The lasting, practical impact of this reform was the severing of the direct relationship between the state legislatures and the national Senate, a blow to federalism that has caused some to propose in recent decades that the 17th Amendment be repealed. (More on that later.)

So, a hundred years on, how’s it working? My Crystal Ball colleague, Geoffrey Skelley, has recently taken a detailed look at our century-long voting experiment with the Senate. Since the ratification of the 17th Amendment, there have been 1,811 popular Senate elections (regular and special), and more than 2.1 billion votes have been cast. Incumbent senators, including appointed ones, have always done well, though perhaps not as well as you might guess: 76 percent of the incumbents have won (1,105 of 1,459)—which means that about one in four incumbents has lost. Of the relative handful of senators who have been defeated, 107 were ousted in a party primary and 250 in the general election. (A few senators, most recently Republican Lisa Murkowski of Alaska in 2010, lost in a primary but won as an independent in November.)

Fun facts about post-17th Amendment popular Senate elections

North Carolina and Tennessee have seen more elected or appointed incumbents (six) lose party renomination than any other state. No incumbent senator seeking renomination has ever lost in Hawaii, Kentucky, Massachusetts, New Mexico, Rhode Island, Washington and Wyoming.

Kentucky has had the most special Senate elections to fill vacancies (seven), while Arizona and Utah are the only states that haven’t had any.

It’s not extremely rare for a state to have a candidate run and win a Senate seat, then eventually lose, then run again successfully later. Among repeat candidates, though, George McGill (D-Kans.) is a notable case. McGill was elected in a 1930 special election to replace Republican Charles Curtis, who had become President Herbert Hoover’s vice president. McGill won reelection in 1932, but lost in the tough Democratic year of 1938. He then lost the 1942, 1948 and 1954 elections for the state’s other Senate seat. Remarkably, McGill is the last Democrat Kansas has sent to the Senate; Republicans have won every Jayhawk Senate contest since 1936.

No state beats Kentucky for modern checkerboard results. Republican John Sherman Cooper (R-Ky.) won a special election for Senate in 1946, only to lose the seat in 1948 to Democrat Virgil Chapman. But Cooper won it back in a 1952 special election after Chapman died, only to lose it yet again in 1954 to former Vice President Alben Barkley. Barkley died in 1956, and sure enough, Cooper won the special election that year. Finally, Cooper managed to obtain some job security, winning two full terms in 1960 and 1966 before retiring.

The least number of votes garnered by a successful Senate candidate since the ratification of the 17th is 12,197. Democrat Charles Henderson of Nevada won a 1918 special election with fewer votes than many state legislators today need for victory. Henderson’s stay in the Senate was short-lived, however, as he lost reelection in the Republican wave year of 1920.

Some states are more hesitant than others to part with their senators. Not a single incumbent in Hawaii has lost renomination or reelection; appointed senator Brian Schatz hopes that record holds when the dust settles after his Aug. 9 Democratic primary against Rep. Colleen Hanabusa (as of now, the race is still too close to call, but Schatz is leading). In Vermont, incumbent senators seeking reelection have won 31 of 32 races, and the only loser was an appointed incumbent who lost renomination. Illinois isn’t nearly as kind. Just 16 of 29 incumbents in the Land of Lincoln have not been defeated eventually, either for renomination or in a general election. This 55 percent success rate is the nation’s lowest. No wonder Barack Obama was so eager to move on. (A few other “fun facts” about Senate elections are listed in the accompanying box.)

The nation somehow survived without public opinion polling at the time of the shift to popular elections, but there is little doubt that most citizens and newspapers of the day supported the change. It didn’t take long, though, for voters to realize that many of the new senators were the same as the old senators. Interest groups found new ways to cozy up to the Senate. Money spent to purchase the votes of state legislators for Senate appointments simply shifted to the election campaigns and “personal accounts” of popularly chosen senators.

Americans have usually been skeptical of both houses of Congress—its approval sits in the low-to-mid teens in recent polling. But there have been a few less cynical rays of sunshine, in times of national crisis and also at moments of reform. With the 17th Amendment, voters felt empowered, and senators knew they had to be more responsive to the broad body of the electorate, not just a handful of legislative kingpins in their state capitol. It’s impossible to know for sure, but today’s Senate very probably has less public admiration and support than the post-17th Amendment one.

Contemporary Congress-watchers legitimately focus on the modern abuse of cloture motions as well as the need for 60 senators to go along with most major bills to assure passage. That’s only part of the reason why a snail would beat the Senate in a road race to anywhere. The very structure of the Senate from its point of origin in 1789 has guaranteed frequent deadlock, especially in polarized, ultra-partisan eras like ours.

It’s a bit of a myth to argue that this is what the founders intended. Some of them, not least James Madison, believed that the Senate should be based on proportional representation by population, just like the House. The small states balked, demanding equal representation in the upper chamber as one price for their assent to the Constitution. Small-state leaders realized early that their interests would often diverge from the concerns of big states with burgeoning populations.

From the very beginning of the Republic, then, there were fears of a small-state stranglehold on the Senate. And this was at a time when the population ratio of the most-to-least populated states (Virginia and Delaware, respectively) was a manageable 13 to 1 or so. In 2014 this chasm has grown into a great gulf. Democratic California has 66 times the population of solidly Republican Wyoming; both states have two senators. It works both ways, in partisan terms: Strongly conservative Texas has 42 times the population of liberal Vermont.

Add it all up, though, and the totals are stunning. Just 16 percent of the U.S. population elects fully half of the Senate. When you take into account the 60-vote requirement for many critical pieces of legislation, a mere 11 percent of America’s population elects the 41 senators needed to stop action.

That’s a little bit misleading—by no means do the senators from the 21 least-populous states stick together on most issues or filibusters, because party affiliation in the Senate means far more than state size—but only a little. On funding formulas for infrastructure and farm subsidies, for instance, there is often a small-state tilt.

The founders were rightly concerned about the tyranny of the majority, the tendency of a narrow-minded majority in Congress or among the citizenry to run roughshod over minority rights. But what about the tyranny of the small minority, which can be overly empowered to stifle the needs and rights of a large majority? Is that not of equal concern? Again, Madison, the Constitution’s principal father, thought so, and he was far from alone in that point of view at the original constitutional convention.

A century ago, Americans changed the political system to vastly increase the number of people who had a direct say in determining the membership of the Senate. But the Senate itself remains an institution that isn’t very representative of the country it helps govern. Can anything be done two and a quarter centuries after the ratification of the Constitution, and 100 years removed from the last fundamental change in the nature of the Senate? Absolutely—if we have the will.

As I suggested earlier, some conservatives want to go back to the status quo ante, and resume state legislative election of U.S. senators in order to strengthen federalism and eliminate hyper-expensive, lobbyist-funded Senate campaigns. Naturally, interest groups would simply revert to their previous efforts to buy state legislative support for favored Senate candidates, so it is difficult to see what is gained. Nor is the public ever going to agree to give up its ballot in Senate races: Most Americans insist upon electing everything clear down to dog-catcher.

So what else could we do? Let me suggest an idea that I first explored in my 2007 book, A More Perfect Constitution: a bigger Senate. The 25 smallest population states would keep their current allocation of two senators. The next 15 states in population totals would receive an extra senator (for a total of three)—and thus elect a senator every two years. The 10 states with the largest populations (currently California, Texas, New York, Florida, Illinois, Pennsylvania, Ohio, Georgia, Michigan and North Carolina) would be assigned four senators—once every three elections, voters from states in this category would cast ballots for two senators at once.

This reform would produce a Senate totaling 135, not massively larger than the current one. The new, extra Senate seats would be reallocated with each decennial Census, though the populations of only three or four states would probably change enough to cause a Senate seat to be gained or lost.

The population of the United States has grown by three-fourths since the Senate reached 100 members in 1960. The extra senators in more populous states could help with the crushing number of constituency requests that flood congressional offices. More importantly, these senators’ votes on the floor would make the Senate somewhat more representative of national sentiment.

The emphasis here is on “somewhat.” Small and medium populated states would still be overrepresented. The10 most populous states have 54 percent of the nation’s people, but would receive just 30 percent of the expanded Senate—still an improvement over the current 20 percent. The 25 smallest states have 50 percent of today’s Senate seats, but that would be trimmed to 37 percent with this reform. The 15 medium-sized states would go from 30 percent to 33 percent.

By the way, this Senate restructuring would also affect the composition of the Electoral College, where the total of 538 electors would become 573, and the magic number to be elected president would increase from 270 to 287. Again, the existing small-state advantage in the Electoral College, owing to every state’s equal allocation of two senatorial electoral votes regardless of population, would be reduced but not eliminated. Yet the expansion of the Electoral College in this fashion would reduce the chances of a candidate winning the electoral majority but losing the popular vote—an unfortunate circumstance that never provides an auspicious start for a presidency.

Now, of course, is the part where you tell me I’m insane to think this could actually happen. Earlier, I asserted we could undertake this sort of serious Senate reform “if we have the will.” We don’t, of course. The constitutional requirement to undertake this is beyond daunting: Article Five of the Constitution says plainly that “no state, without its consent, shall be deprived of equal suffrage in the Senate.” I usually say such dramatic proposals such as my Senate idea are scheduled for the 12th of Never, but this one won’t even be able to find a day in the entire month of Never. The small states will not abandon their structural advantage, and they have an effective veto.

So why bother to present the notion? I would argue, and I think many readers might agree, that some parts of our system, including the Senate, no longer work particularly well. Historically, the American impulse in such circumstances has been renewal and reform. Dynamic, thriving societies focused on the future always try to invent a better mousetrap—or at least encourage discussion about constructive possibilities. Sadly, the gridlocked, polarized government of the United States is much more inclined to play small ball in these hyper-partisan times.

There’s no compelling, joyful reason to celebrate the centennial of a popularly elected U.S. Senate, but there is a useful motive for remembering it. Members of the upper chamber refer to it as “the world’s greatest deliberative body,” but it’s undeniable that senators judge their institution more highly than do the people they are supposed to serve. Shouldn’t we use this anniversary to think about what the 20th century shift to popular election actually wrought, and whether new and different changes can improve the Senate for the 21st century and beyond?

Larry J. Sabato is university professor of politics and director of the University of Virginia Center for Politics, which publishes the online, free Crystal Ball politics newsletter every Thursday, and a regular columnist for Politico Magazine. His most recent book is The Kennedy Half-Century: The Presidency, Assassination, and Lasting Legacy of John F. Kennedy.